A New York Guardianship Proceeding is commenced by the filing of a petition. Mental Hygiene Law (MHL) Section 81.08 sets forth the requirements of the petition. MHL Section 81.06 designates the persons who may file the proceeding which includes family members as well as any other person who has concerns regarding the alleged incapacitated person (AIP). The New York Probate Lawyer Blog has described the Guardianship process in numerous earlier posts.
It is very common that Guardianship proceedings involve litigation where family members compete for appointment so that they can control the finances and personal needs of the AIP. When making a determination as to whether to appoint a Guardian, the Court is guided by MHL Section 81.02 which states the standards for an appointment. Essentially, the Court must find that a Guardian is necessary and that the AIP is incapacitated. In simple terms incapacity is demonstrated where an AIP cannot provide for property management or personal needs and cannot understand or appreciate their disability and as a result the AIP would likely suffer harm.
In contested Guardianship proceedings, where family members are competing to control the life of an AIP, the dynamics between the actual need for a Guardian and the desires of the contesting relatives creates a complex situation for a Court to review.
In a recent case decided by Brooklyn Supreme Court Justice Michael Pesce on April 21, 2015 entitled Matter of Rachel Bodek and Esther Fulop, there were competing petitions by the AIP’s children to obtain Guardianship of their mother. As recounted by the Court, the underlying impetus for the proceeding was the conflict between the siblings. The Court had appointed a Court Evaluator who investigated the issues and submitted a Report in which she recommended that there was no necessity for the appointment of a Guardian. The Court Evaluator found that the AIP was not at risk since she received 24/7 home health care and her other needs were being met.
The Court’s analysis agreed with the Court Evaluator that the AIP was not at risk since there were available resources in place to provide for the AIP’s well-being including a Health Care Proxy. Thus, the Court denied the petitions of the siblings and did not appoint a Guardian. In fact, the Court found that the petitions were not filed in good faith and directed the competing siblings to share the Court ordered cost of the fees granted to the Court Evaluator and the Court appointed attorney for the AIP.
I have represented many petitioners and family members in Article 81 proceedings. As can be seen from the Bodek case, these proceedings can be complicated by underlying family issues that are unrelated to the actual issue of the need for a Guardianship. It is important in these cases to have the input and guidance of experienced legal representation so that the concerns directly related to the interests of the AIP are given primary focus. If you have any questions concerning a Guardianship matter, call or email me to schedule a consultation for a free review.
New York City Guardianship lawyer, Jules Martin Haas has helped many clients over the past 30 years throughout Manhattan and Queens Counties resolve issues relating to litigation and settlement in New York Guardianship proceedings. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
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